When “unanimous” isn’t

When a jury in a criminal trial returns a unanimous verdict of “guilty”, we generally presume they are in 100% agreement on that verdict. But are they?

Hannah Gutierrez was recently convicted in the negligent homicide that occurred on the set of the movie Rust. And while one could readily presume that means all of the jurors were in complete agreement on all facts going into that verdict, the jury instructions… shed light on the fact that may not actually be what happened.

The issue stems from the words “and/or” in the jury instructions.

The Massachusetts Appellate Court ruled such in 1998, stating that including “and/or” in the jury instructions was “so confusing and misleading as to engender great doubt about whether the jury was unanimous with respect to some part or all aspects of its verdict or whether the jury may have convicted the defendant by finding the presence of less than all the elements the prosecution was required to prove”.[Commonwealth v. Johnson, 700 N.E.2d 270, 272-73 (Mass. App. Ct. 1998)]

And in quoting the above, the New Mexico Supreme Court issued a ruling earlier this month overturning a conviction because of “and/or” in the jury instructions and remanding for a new trial:

Based on the significant risk of jury confusion and misdirection created by the 2 use of the ambiguous term and/or in identifying Defendants’ underlying course of 3 conduct in the jury instructions as framed, we reverse Defendants’ reckless child 4 abuse convictions and remand for a new trial consistent with this opinion.

And when you’re talking about complicated matters of law that are supposed to be understood by a lay person on a jury, ambiguous jury instructions are going to be a problem. And jury instructions have been cause for many appeals of criminal convictions.

And as the Massachusetts Supreme Court ruled in 1998, quoted above, the inclusion of “and/or” opens up the possibility that a jury could be split on the facts but still convict, possibly even split on whether every fact required by law to be proven has actually been proven.

Jury instructions serve a vital purpose in a criminal and civil trial. They are explanations of the law that tell the jury what specifically they are being asked to determine, what facts they are to decide as the finders of fact have actually been proven. Beyond reasonable doubt in a criminal trial, beyond a mere preponderance of the evidence in a civil trial. And faulty jury instructions have been subject to appeal… a lot.

A jury’s verdict of guilty is to be unanimous. When a jury returns a verdict of “guilty”, it is right to presume it means all facts required to be proven beyond reasonable doubt have actually been proven such, and the jury is saying so unanimously. And the jury instructions must reflect that. Meaning judges need to be careful to not include “and/or” in such a way that a jury could wrongly believe they can return “guilty” even when they are split on all necessary facts.

So if such was also the case leading to Hannah Gutierrez’s conviction, then that conviction absolutely should be vacated and a new trial ordered with proper jury instructions given.